IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

In re: Morning Song Bird Case No. 2:14-mc-39

Food Litigation 

United States of America

v. Case No. 2:12-cr-24

The Scotts Miracle-Gro

Company

OPINION AND ORDER

This matter is before the court on the application of the

putative class plaintiffs in the case of In re Morning Song Bird

Food Litigation, Case No. 3:12-cv-1592-JAH-RBB, now pending in the

United States District Court for the Southern District of

California, for an order authorizing disclosure by this court’s

probation office of the presentence report (“PSR”) and related

documents prepared during the criminal prosecution of The Scotts

Miracle-Gro Company (“Scotts”) in this court. See United States v.

The Scotts Miracle-Gro Company, Case No. 2:12-cr-24 (S.D. Ohio). 

Plaintiffs also seek to obtain a transcript of a presentencing in

camera conference held in that case on July 13, 2012. Scotts has

filed a motion in the criminal case to seal the transcript and the

government has filed a sealed motion advocating that the PSR not be

disclosed.

I. Background

A. Scotts Criminal Action

In 2012, this court presided over the criminal prosecution

against Scotts in which Scotts was charged by information with

eleven misdemeanor counts involving pesticide misuse, falsification

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of pesticide registration documents, distribution of a misbranded

pesticide and distribution of unregistered pesticides. In

particular, Count 1 charged pesticide misuse in violation of 7

U.S.C. §136j(a)(1)(G), and alleged that Scotts improperly used

pesticides to treat grains which were marketed as bird food. The

remaining counts pertained to the falsification of forms by a

single Scotts employee and the resultant mislabeling of other

Scotts’ products unrelated to bird seed. Scotts pleaded guilty to

the information pursuant to a plea agreement which included a

binding sentencing agreement under Fed. R. Crim. P. 11(c)(1)(C). 

On September 10, 2012, Scotts was sentenced to pay a fine in the

amount of $4,000,000, special assessments totaling $1,375, and a

community service payment in the total amount of $500,000. No term

of probation was imposed.

B. Class Plaintiffs’ Request for Disclosure

On January 31, 2013, an amended consolidated class action

complaint was filed in the United States District Court for the

Southern District of California. In that case, putative class

representatives alleged claims against The Scotts Miracle-Gro

Company, The Scotts Company LLC, and individual John Doe defendants

stemming from Scotts’ sale of allegedly toxic bird food. On

November 13, 2014, counsel for the putative class sent a letter to

this court’s probation office, requesting disclosure under the

Freedom of Information Act (“FOIA”) of all correspondence between

Probation Officer Schal Boucher, the author of the PSR in the

Scotts case, the Environmental Protection Agency (“EPA”), and

Scotts. By letter dated November 28, 2012, Ms. Boucher informed

counsel that he would “need to send a subpoena for the records you

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are requesting directly to the Court” as the “probation office is

unable to release any records from this file without the Court’s

permission.” Doc. 9-4, PAGEID #179.

By letter dated December 10, 2014, addressed to this court,

counsel for the class plaintiffs requested that the court grant

authorization for the probation office to release records in the

Scotts case, including the PSR, witness interviews, correspondence

and communications with governmental agencies, and internal company

documents that were prepared or submitted as part of Scott’s

presentence investigation. See Doc. 1. This letter was assigned

a miscellaneous case number to create a record of these proceedings

and to permit any other interested parties to respond. Counsel

representing Scotts in the California case submitted a letter

opposing disclosure of the PSR and related documents. See Doc. 2.

By letter dated February 18, 2015, the class plaintiffs

renewed their request for disclosure of the PSR and pre-sentence

communications, attaching redacted versions of an objection letter

from Scotts to Ms. Boucher dated June 18, 2012, and another

objection letter from Scotts to Ms. Boucher dated June 24, 2014, as

exhibits. See Docs. 8 and 9. By letter dated March 9, 2015,

counsel for Scotts responded that the redactions in these documents

were the subject of discovery discussions in the California case in

September of 2014. Counsel alleged that plaintiffs’ letters to

this court are an attempt to bypass the parties’ meet-and-confer

agreement in the California case resolving this discovery issue. 

See Doc. 11.

On April 1, 2015, the class plaintiffs submitted additional

information consisting of an ex parte application filed in the

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California court concerning their pending class certification

motion, and requested that certain materials be filed under seal. 

Those materials included the supplemental addendum to the Scotts

PSR, and an unredacted version of Scotts’ June 18, 2012, letter to

Ms. Boucher. See Doc. 15. The magistrate judge assigned to the

instant miscellaneous action granted the motion to seal, but

directed that any party seeking to have the documents remain under

seal to file a motion within fourteen days. Doc. 14.

On April 16, 2015, counsel for Scotts filed a motion to seal

the April 1, 2015, materials submitted by plaintiffs for filing

under seal. Doc. 16. Scotts’ counsel maintained that on March 25,

2015, Scotts notified plaintiffs that the addenda to the PSR had

been inadvertently disclosed in discovery, and asked plaintiffs to

destroy the inadvertently disclosed materials pursuant to Fed. R.

Civ. P. 26(b)(5)(B). On April 1, 2015, the class plaintiffs filed

an application in the California action seeking a ruling that the

inadvertently produced materials could be considered on the merits

as support for their motion for class certification. By order

entered on June 5, 2015, in the California action, Magistrate Judge

Brooks denied the class plaintiffs’ application for authorization

to use the documents, noting that it was for this court to rule on

the scope and applicability of this court’s local rule governing

the disclosure of PSRs and related materials. See Doc. 23, Ex. B.

C. Request for Disclosure of Transcript of Pre-Sentencing Hearing

In April of 2015, this court was advised that the class

plaintiffs were seeking a transcript of the in camera presentencing conference held in the Scotts case on July 13, 2012. 

This court entered an order in the criminal case directing that any

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party seeking to have the transcript sealed could file a motion to

that effect. See Case No. 2:12-cr-24, Doc. 26. On April 20, 2015,

Scotts filed a motion to seal. See Case No. 2:12-cr-24, Doc. 27. 

On May 11, 2015, the California class plaintiffs filed a motion to

intervene in the criminal action to obtain disclosure of the

transcript. See Case No. 2:12-cr-24, Doc. 28. On May 14, 2015,

this court denied the class plaintiffs’ motion to intervene in the

criminal case, but invited them to file a response to Scotts’

motion to seal in the miscellaneous action. The class plaintiffs

did so, and Scotts filed a reply.

On July 2, 2015, the government filed a brief motion under

seal in Case No. 2:12-cr-24 entitled “Motion in Support of Local

Rule 32.1(k).” The government, without reference to the contents

of the Scotts PSR or the subject matter of the July 13, 2012,

conference, urged this court in general terms to exercise its

discretion under Southern District of Ohio Local Rule 32.1(k) by

declining to order disclosure of the PSR and related documents. 

The government argued that plaintiffs’ proposed use the PSR in

their civil action does not constitute a “special need” outweighing

the need for confidentiality, and that the parties’ reference in

sentencing memoranda to information which was also contained in the

PSR did not constitute a waiver of their right to advocate that the

PSR remain sealed.

D. Probation Office’s Response

Following a meeting with Chief Probation Officer John Dierna,

Deputy Chief Probation Officer Phelps Jones, and Supervising

Probation Officer Beth Harris, Ms. Boucher, in a memorandum dated

April 22, 2015, recommended that the PSR and any documents gathered

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during the presentence investigation that are still maintained in

the probation office’s file not be disclosed. Ms. Boucher stated:

The probation officer has concerns that disclosing such

information and documents may potentially compromise the

presentence investigative process and free flow of

sentencing information customarily received by the

probation office and in turn provided to the Court for

purposes of sentencing. Thus, it is this officer’s

opinion that maintaining the confidentiality of the

presentence report and investigative information,

including the resolution of any objections during the

presentence process, is essential to the ongoing free

flow of information.

April 22, 2015, Memorandum, pp. 1-2.

In addition, by memorandum dated January 12, 2015, Ms. Boucher

informed the court that the electronic case file in the Scotts case

maintained by the probation office includes the information, the

plea agreement, the judgment entry, and the PSR (including the

sentencing recommendation), and the addenda (including objection

letters). Ms. Boucher orally advised the court that following the

sentencing hearing, all other documents provided by the parties

were disposed of in accordance with probation office policy, which

does not permit keeping paper case files. Ms. Boucher also

indicated that she did not retain her e-mail correspondence with

the parties and counsel in the Scotts case. Ms. Boucher stated

that because Scotts was not placed on any type of probation or

post-sentencing supervision, there was no need to preserve any of

the materials which were not required to be scanned pursuant to

probation office policy, those being the documents referred to

above. Therefore, the only issues before the court are whether the

class plaintiffs are entitled to disclosure of the PSR, the

recommendation, and the addenda (including objection letters), and

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whether the transcript of the July 13, 2012, in camera hearing

should be disclosed.

II. Disclosure of PSR and Related Documents

A. Court’s Authority to Rule on Application

In In re Siler, 571 F.3d 604, 610 (6th Cir. 2009), the Sixth

Circuit questioned whether the district court had any authority to

entertain a motion by a third party to unseal or release PSRs,

noting that, after sentencing, PSRs are in the custody of the

probation office. Id. at 609. But see Fuller-Avent v. United

States Probation Office, 226 F.App’x 1 (D.C.Cir. 2006)(federal

probation offices are administrative units of the United States

courts, citing 18 U.S.C. §3602); United States v. Schlette, 842

F.2d 1574, 1577 (9th Cir. 1988)(PSRs and related documents are

court records, and control of these documents rests within the

discretion of the district court); United States v. Harris, 635

F.2d 526, 528 (6th Cir. 1980)(the probation office is an arm of the

court).1 The Sixth Circuit also concluded, in the alternative,

that even if the district court had the power to order the release

of the PSRs to a third party, the court did not abuse its

1 The Sixth Circuit further commented that PSRs may be

subject to disclosure by filing a request under FOIA. In re Siler,

571 F.3d at 610. However, FOIA exempts federal courts from its

disclosure requirements, as federal courts are excluded from the

definition of “agency.” See 5 U.S.C. 551(1)(B); Brown & Williamson

Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983). 

Because the probation office is an arm of the court, it would

likewise be exempt from FOIA requests. U.S. Dept. of Justice v.

Julian, 486 U.S. 1 (1988), cited by In re Siler, 571 F.3d at 609,

for the proposition that PSRs may be disclosed under FOIA, is

distinguishable. Julian involved FOIA requests by inmates for

disclosure of their own PSRs which were in the custody of the

Parole Commission, an agency of the Department of Justice, not a

FOIA request made to a probation office.

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discretion by denying the requests for disclosure. In re Siler,

571 F.3d at 609-611.

In In re Siler, the district court’s local rules did not

govern access to PSRs. Id. at 610. The instant case is

distinguishable because the local rules for the Southern District

of Ohio do address the disclosure of PSRs and other probation

office records. Under S.D. Ohio Local Rule 32.1(e), the final PSR

is disclosed to the judge and to counsel for the defendant and the

government. Local Rule 32.1 further provides:

The presentence report and related documents shall be

maintained in confidence and under seal. Unauthorized

copying or disclosure of the information contained in any

draft or final presentence report, addendum, statement,

or attachment to such a report will be an act in contempt

of Court, and punished accordingly.

S.D. Ohio Local Rule 32.1(k). In addition, S.D. Ohio Local Rule

32.2 provides:

(a) Probation and Pretrial Services Officers are officers

of the Court. Their confidential records and files are

the confidential records of the Court and the information

they acquire in performing their duties is confidential.

(b) The Director of the Administrative Office of the

United States Courts has promulgated regulations

establishing procedures for the production or disclosure

of documents and the testimony of judiciary personnel in

legal proceedings. Those regulations are applicable in

this Court except as otherwise provided in this Rule....

(c) When disclosure of Probation or Pretrial Services

records or a request for the testimony of a Probation or

Pretrial services Officer is sought by way of subpoena or

other judicial process, the Chief of Probation or

Pretrial Services shall consult with the Chief District

Judge of this Court with respect to responding to the

subpoena or other judicial process.... If the request

relates to the Probation Office, the Chief District Judge

may refer the matter to the district Judge or Magistrate

Judge who passed sentence.

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S.D. Ohio Local Rule 32.2. In this case, the probation officer

properly brought the class plaintiffs’ request for probation

records to the attention of former Chief Judge Dlott, who referred

the matter to the undersigned judge.

The Administrative Office of the United States Courts has also

issued policy directives in its Guide to Judiciary Policy

concerning the disclosure of PSRs and other probation records which

were not discussed by the In re Siler court. The Guide to

Judiciary Policy, Volume 20, Administrative Claims and Litigation,

Chapter 8, governs the production of records, whether by subpoena

or any other request by whatever method. Guide to Judiciary

Policy, Volume 20, §810.30. The policy statements apply to all

components of the federal judiciary and their personnel. Guide to

Judiciary Policy, Volume 20, §810.40(a)(1). Federal judicial

personnel may not produce records in legal proceedings except as

authorized in accordance with these regulations. Guide to

Judiciary Policy, Volume 20, §820(a).

A request for production of records must include a statement

explaining the nature of the records sought, the relevance of the

records sought to the legal proceedings, and the reasons why the

records sought, or the information contained therein, are not

readily available from other sources or by other means. Guide to

Judiciary Policy, Volume 20, §830(a). In the case of a request

directed to a district judge, the district judge is authorized to

make the disclosure determinations under the regulations. Guide to

Judiciary Policy, Volume 20, §840(b)(1). Where the request is

directed to a probation office, the determining officer will be the

chief probation officer; however, “the determining officer ...

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should, as provided by local rule or order, consult with the chief

judge of the court served by the particular office regarding the

proper response to a request.” Guide to Judiciary Policy, Volume

20, §840(b)(3). 

The policy statements list several factors for the court to

consider in determining the effect that disclosure will have, in

this and future cases, on the ability of the federal judiciary to

perform their official duties. Guide to Judiciary Policy, Vo. 20,

§850(a). Those factors include: the need to avoid spending the

resources of the United States for private purposes, to conserve

the time of federal judicial personnel for the performance of

official duties, and to minimize the federal judiciary’s

involvement in issues unrelated to its mission; whether the request

meets the requirements of the regulations; whether the request was

properly served under applicable court, administrative, or other

rules; whether the production of records would disclose information

regarding the exercise of judicial or quasi-judicial

responsibilities by federal judicial personnel in the decisional or

deliberative process; whether the production of records would

disclose confidential information from or pertaining to a

presentence investigation report; and whether the request seeks

records or documents available from other sources. Guide to

Judiciary Policy, Volume 20, §850(a)(1), (7), (8), (10). (11) and

(13).

The Guide to Judiciary Policy, Volume 8, Part D, Probation and

Pretrial Services, Chapter 6, contains specific policy statements

concerning the disclosure of PSRs to third parties. The PSR is a

confidential document which may be provided to the prosecution and

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the defense attorneys for the purpose of the sentencing hearing,

and for the government’s use in collecting financial penalties. 

Guide to Judiciary Policy, Volume 8, §630(a). The policy

statements further provide:

As a general rule, the presentence report is unavailable

to anyone other than as described above, without

permission of the court. The presentence report is

primarily for court use, and court policies should be

rigidly followed in revealing the contents of the report

beyond the court. Except for the provisions noted above,

the court has complete discretion as to the disclosure of

the presentence report, and consent of the court should

be sought before other disclosures are made.

Guide to Judiciary Policy, Volume 8, §630(c). Where the court

orders that the court/probation records remain confidential and

specifically directs that the probation officer decline to produce

any records if subpoenaed, the officer is precluded from disclosing

such information. Guide to Judiciary Policy, Volume 8, §630(d). 

“Circumstances warranting disclosure of probation records are rare

and are determined by the sentencing judge.” Id. Confidentiality

may be lifted at the discretion of the court if disclosure of the

requested information “is necessary to ‘meet the ends of justice,’

... although disclosure should be denied when the requested

information is available by another means since the ‘ends of

justice’ do not include mere convenience.” Guide to Judiciary

Policy, Volume 8, §630(d)(2).

In a memorandum dated December 16, 2014, Judge John D. Bates,

Director of the Administrative Office of the United States Courts,

addressed the topic of requests for access to PSRs, noting:

Third parties seeking access to information contained in

presentence reports ... must comply with case law,

Judiciary and DOJ policy, and local rules and standing

orders that prescribe the manner for making a disclosure

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request. Courts generally deny such requests absent

compelling circumstances. The sentencing judge

determines whether further disclosure is warranted.

December 16, 2014 Memorandum, p. 1 (footnote omitted).

This court concludes that it has the authority under this

court’s local rules and the Guide to Judiciary Policy to rule on

the class plaintiffs’ request that authorization be given to the

probation office to disclose the Scotts PSR and related documents. 

See United States v. Barker, Nos. 3:13-mc-15 and 3:13-mc-16, 2014

WL 661603 at **5-6 (S.D. Ohio Feb. 19, 2014)(PSR is a court

document designed and treated principally as an aid to the court in

sentencing; sentencing court retains authority to permit or deny

release of the PSR)(citing Local Rules 32.1(k) and 32.2 and Guide

to Judiciary Policy, Volume 8, §630(c))(Report and Recommendation

adopted 2014 WL 1365951 (S.D.Ohio April 7, 2014). The court will

proceed to address the merits of the application.

B. Access under First Amendment

The class plaintiffs argue that they have a right of access to

the PSR and related documents under the First Amendment. However,

the First Amendment right of access is not absolute; rather, it is

a flexible concept which allows a district court discretion to deny

access. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598

(1978); In re Search of Fair Finance, 692 F.3d 424, 430 (6th Cir.

2012). In United States v. Corbitt, 879 F.2d 224, 237 (7th Cir.

1989), the court held that a newspaper publisher had no First

Amendment right to disclosure of a PSR, reasoning that PSRs have

not generally been available to the public, and that publicity

would not help to insure that the presentence investigation is

properly conducted. See also In re Hearst Newspapers, L.L.C., 641

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F.3d 168, 181 n. 14 (5th Cir. 2011)(First Amendment right of access

to sentencing proceedings did not extend to the practice of keeping

PSRs confidential, noting that PSRs have historically been treated

as confidential, and the Federal Rules of Criminal Procedure

expressly provide for limited access to information contained in

PSRs); CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of California,

765 F.2d 823, 826 (9th Cir. 1985)(PSRs are not subject to the First

Amendment right of access due to their confidential nature). The

First Amendment does not compel granting access to the PSR and

related documents in this case.

C. Common Law Right of Access to Judicial Records

The class plaintiffs are not entitled to disclosure of the PSR

under the common law right of access to judicial records. Although

the common law right of access creates a strong presumption in

favor of public access to materials submitted as evidence in open

court, the presumption does not apply to materials submitted to the

court under seal. Corbitt, 879 F.2d at 228. In the case of

confidential judicial records, the party seeking disclosure may not

rely on presumptions, but instead must make a specific showing of

the need for access to the document. Id. PSRs are not treated as

public records, but are handled and marked as confidential reports. 

In re Siler, 571 F.3d at 610. Thus, the common law right of access

to court records does not cover the Scotts PSR. Id.

D. Disclosure under the Special Need Standard

1. Presumption in Favor of Nondisclosure

There is a “‘general presumption that courts will not grant

third parties access to the presentence reports of other

individuals.’” United States v. Huckaby, 43 F.3d 135, 138 (5th

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Cir. 1995)(quoting United States v. Smith, 13 F.3d 860, 867 (5th

Cir. 1994)); Schlette, 842 F.2d at 1579 (courts have usually

applied a strong presumption in favor of confidentiality). PSRs

are not public documents. In re Siler, 571 F.3d at 610. PSRs are

traditionally kept from the public eye and maintained under seal. 

Ashworth v. Bagley, 351 F.Supp.2d 786, 789 (S.D.Ohio 2005). Under

Fed. R. Crim. P. 32, the PSR must be given to the defendant, the

defendant’s attorney, and an attorney for the government. Fed. R.

Crim. P. 32(e)(2).

2. Special Need Standard

Rule 32 is silent on whether the PSR can be disclosed to third

parties. However, “in both civil and criminal cases the courts

have been very reluctant to give third parties access to the

presentence investigation report prepared for some other individual

or individuals.” Julian, 486 U.S. at 12 (emphasis in original). 

Courts have typically required some showing of special need before

they will allow a third party to obtain a copy of a PSR. Julian,

486 U.S. at 12; see also United States v. Williams, 624 F.3d 889,

894 (8th Cir. 2010)(requiring some showing of special need before

a district court releases a PSR to a third party); United States v.

Anzalone, 886 F.2d 229, 233 (9th Cir. 1989)(party seeking

disclosure must show a large compelling need for disclosure to meet

the ends of justice). Even where a third party shows a compelling,

particularized need for disclosure of the PSR, “the court must be

sensitive not only to the interests in confidentiality of the

particular report, but also to the possible future effects of

disclosure in any particular case.” Corbitt, 879 F.2d at 239.

Courts have held that a special need is not shown where the

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third parties need the PSR because they failed to adequately

complete discovery in their civil litigation, or where the

information in the PSR is available from other sources. See In re

Siler, 571 F.3d at 611; see also United States v. Jewell, 614 F.3d

911, 922 (8th Cir. 2010)(no abuse of discretion in requiring third

party to show that other sources of information were not adequate

for his purposes); United States v. Spotted Elk, 548 F.3d 641, 672

(8th Cir. 2008)(special need not shown where information about coconspirators could be obtained from publicly available sources);

Bellar ex rel. Bellar v. United States, 221 F.R.D. 674, 678 (D.N.M.

2003)(disclosure not justified where virtually everything in the

PSR is available from other sources).

Likewise, the mere fact that disclosure of the PSR would

facilitate the preparation of plaintiffs’ civil case is not

sufficient. Bellar, 221 F.R.D. at 678; Hancock Brothers, Inc. v.

Jones, 293 F.Supp. 1229, 1232 (N.D.Cal. 1968)(where plaintiffs in

civil action against corporation based on the same conduct involved

in the corporation’s criminal prosecution sought PSR for “the

avoidance of expense and additional work,” disclosure was denied,

as “[m]ere convenience is not enough to encroach upon the secrecy”

of such materials). The fact that information in a PSR may be

relevant to plaintiffs’ civil action is also not enough to overcome

the strong presumption of confidentiality. Rodgers v. Gilbert, No.

3:11-CV0604-H, 2012 WL 1567203 at *1 (W.D.Ky. April 30,

2012)(plaintiffs must show more that mere relevance); Bellar, 221

F.R.D. at 679; see also United States v. Charmer Indus., 711 F.2d

1164, 1176 (2d Cir. 1983) (“[p]roof of mere relevance, economy, and

efficiency will not suffice”).

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The confidentiality of PSRs “is supported by powerful policy

considerations.” Huckaby, 43 F.3d at 138. Three such

considerations are frequently cited. First, because PSRs function

primarily to assist the court in determining an appropriate

sentence, United States v. Molina, 356 F.3d 269, 274 (2d Cir.

2004), PSRs reveal not only information concerning the offense, but

also, in broad terms, any information concerning the defendant that

may aid the court in sentencing. See Huckaby, 43 F.3d at 138. The

defendant has a privacy interest in the PSR because it “routinely

describes the defendant’s health, family ties, education, financial

status, mental and emotional condition, prior criminal history and

uncharged crimes.” Id.; see also United States v. Trevino, 89 F.3d

187, 191 (4th Cir. 1996)(routine disclosure of confidential PSR

information may compromise the defendant’s privacy interest in that

material).

The importance of this privacy interest is supported by the

fact that PSRs do not conform to the rules of evidence, and may

contain errors. Huckaby, 43 F.3d at 138; see also Charmer Indus.,

711 F.2d at 1171 (PSRs may contain hearsay statements that are not

subject to cross-examination). The defendant is permitted under

Fed. R. Crim. P. 32 to point out alleged factual inaccuracies in

the PSR, and the court is not permitted to rely on information in

the PSR which it finds to be inaccurate. However, even if the

court agrees that the disputed material is inaccurate, “the court,

it its discretion, may simply disregard the disputed material” and

may “note its nonreliance but will not cause the inaccurate

statements to be deleted from the presentence report.” Charmer

Indus., 711 F.2d at 1172; see also United States v. Iqbal, 684 F.3d

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507, 510 (5th Cir. 2012)(“a PSR is rarely revised to remove

misinformation”). Because the PSR “is not usually rewritten to

remove misinformation ... misunderstandings about a defendant could

easily arise from the routine publication” of PSRs.” Huckaby, 43

F.3d at 138. 

Second, there can be a need to protect the confidentiality of

the information contained in the report. Julian, 486 U.S. at 12. 

The PSR often relies upon confidential informants or sources of

information and may include facts obtained from proceedings before

the grand jury, which are otherwise secret. Huckaby, 43 F.3d at

138. 

Third, because PSRs function primarily to assist the court in

determining an appropriate sentence, they are generally viewed as

confidential so as not to impede the free flow of information

needed to assist the sentencing judge. Molina, 356 F.3d at 274;

see also United States v. Shafer, 608 F.3d 1056, 1066 (8th Cir.

2010)(noting the longstanding judicial view that confidentiality

should be maintained because the public availability of PSRs would

likely inhibit the flow of information to the sentencing judge); 

Charmer Indus., 711 F.2d at 1171 (PSRs should be confidential to

ensure the availability of as much information as possible to

assist in sentencing). As the Supreme Court has noted, courts have

been very reluctant to give third parties access to PSRs due to

“the fear that disclosure of the reports will have a chilling

effect on the willingness of various individuals to contribute

information that will be incorporated into the report.” Julian,

486 U.S. at 12. “‘[R]equiring disclosure of a presentence report

is contrary to the public interest as it may adversely affect the

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sentencing court’s ability to obtain data on a confidential basis

from the accused, and from sources independent of the accused, for

use in the sentencing process.’” United States v. Gomez, 323 F.3d

1305, 1308 (11th Cir. 2003)(quoting United States v. Martinello,

556 F.2d 1215, 1216 (5th Cir. 1977)). In ruling on a request for

disclosure of a PSR, the district court should also “ask whether

disclosure would have untoward effects on the gathering of

information in future presentence investigations.” Corbitt, 879

F.2d at 235.

 Information disclosed to probation officers during the

presentence investigation is frequently given to the investigators

in confidence. Charmer Indus., 711 F.2d at 1171. “If the

defendant or cooperating third parties could reasonably fear the

regular release of PSR-gathered information, it could ‘stifle or

discourage that vital transmission of information by defendants’

and third parties, thereby hampering the court’s ability to impose

a sentence consistent with the” statutory sentencing factors. 

Iqbal, 684 F.3d at 510 (quoting Huckaby, 43 F.3d at 138). As the

court noted in Corbitt, “the defendant might be reluctant to

disclose details of his or her private life due to the possibility

that the contents of the presentence report might one day end up in

a newspaper.” Corbitt, 879 F.2d at 234. The court further

observed that the process of preparing the PSR “can be an important

first step in the rehabilitation of the defendant.” Corbitt, 879

F.2d at 233.

The defendant should not be denied the opportunity to

participate fully in the important rehabilitative process

of the presentence investigation because of the risk that

intimate details of his or her personal life may

eventually be published. Nor should the sentencing court

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be denied this highly relevant information, which may

provide greater insight into the defendant’s character

than all other sources of presentence information

combined.

Corbitt, 879 F.2d at 233-34. These concerns apply as well to a

corporate defendant. 

3. Class Plaintiffs’ Application

Addressing the class plaintiffs’ application, the only

documents included within the scope of the disclosure request

pending before this court are the documents currently within the

possession of the probation office: the PSR (including the

sentencing recommendation), and any addenda to the PSR (including

the parties’ objection letters). This court determines that the

PSR request falls within the scope of Rule 32.1(k), and that the

sentencing recommendation, addenda, and objection letters from the

government and Scotts to the probation officer are “related

documents” within the meaning of Rule 32.1(k) because they were

integral to the objection process and the preparation of the final

PSR.

As to the considerations outlined in the Guide to Judiciary

Policy, Volume 20, §850(a), the class plaintiffs’ request for

disclosure does involve the spending of government resources for

private purposes, and has involved an expenditure in time of

federal judicial personnel and this court. As to whether the

request was properly served, Scotts correctly notes that the class

plaintiffs’ letter to this court violated Local Rule 83.3, S.D.

Ohio, which requires attorneys who are not members of the bar of

this court to apply for admission pro hac vice, and Local

Rule7.2(c) which prohibits letters to the court. However, after

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this matter was assigned a case number, counsel for the class

plaintiffs applied for and was granted admission pro hac vice, and

the Guide to Judiciary Policy, Volume 20, §810.30, contemplates

requests for PSRs “by whatever method.” The court concludes that

these procedural violations were de minimus. The request for

disclosure does entail production of confidential information from

or pertaining to a presentence investigation report.

As to whether the request meets the requirements of the

regulations, the request must show the relevance of the records to

the legal proceedings for which the information is sought. Guide

to Judiciary Policy, Volume 20, §830(a). Although some information

in the PSR concerning Count 1 of the information, misuse of

pesticides in bird seed, may be relevant to the putative class

action, the PSR also contains information which would not be

relevant, such as information concerning Counts 2 through 11, which

were totally unrelated to the charge in Count 1.

The class plaintiffs must also demonstrate that disclosure of

the requested information “is necessary to ‘meet the ends of

justice,” and that the requested information is not available by

another means, as “the ‘ends of justice’ do not include mere

convenience.” Guide to Judiciary Policy, Volume 8, §630(d)(2). 

The claim of the class plaintiffs that they have requested the PSR

and related materials to help build their case for trial and to

establish Scotts’ civil liability is not sufficient in itself. The

class plaintiffs cannot use this court’s probation office as a

convenient source of discovery materials. Rather, the class

plaintiffs must show why the information contained in the PSR and

related materials is not readily available from other sources or by

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other means. Guide to Judiciary Policy, Volume 20, §830(a). 

The court is not convinced that the class plaintiffs have

satisfied this burden. The class plaintiffs have not shown why

they cannot obtain the information they seek in the California

action through that court’s discovery process, including document

production, interrogatories, requests for expert reports and

depositions. The class plaintiffs can investigate the degree of

toxicity resulting from the addition of pesticides to the bird seed

by retaining their own experts and by deposing Scotts’ experts. 

They can pursue the issue of Scotts’ knowledge of the illegal

activity by deposing Scotts’ employees and officers. From the

information in the PSR, it is logical to assume that both Scotts

and the government possessed documents or records of their own

creation, as well as their own expert reports, which were relevant

to Scotts’ bird seed business. Business records and other

documents created and maintained by the parties do not become

“related documents” within the meaning of Local Rule 32.1(k) simply

because those documents were also used as the source of information

provided to the probation officer, who in turn used that

information in preparing the PSR or in addressing objections. The

class plaintiffs have not shown that business or government records

(excluding the Scotts case PSR and related documents identified

above) which are in the possession of Scotts or the EPA cannot be

obtained through discovery or some other process in the California

action or through a FOIA request made to the EPA.2

2

 Again, the only issue before this court is whether the PSR

and related documents identified as such in this order should be

disclosed. Aside from this issue, the court expresses no opinion

on the scope of any discovery in the California action or any FOIA

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As to the policy considerations which are cited in favor of

nondisclosure of the PSR, the court has no information that any of

the information in the PSR was obtained from confidential sources. 

As to the defendant’s privacy interest, Scotts is an international

corporation whose stock is publicly traded, thereby making Scotts’

finances a matter of public record. However, that does not mean

that all of the information in the PSR was intended to be for

public broadcast, particularly matters bearing on Scotts’ internal

operations. The risk of hearsay statements in the PSR being

accorded undue significance is an important consideration in this

case. At sentencing, this court made no ruling on the objection

regarding whether the pesticides in Scotts’ bird seed products

actually caused harm to birds, see Doc. 24, p. 15, yet the parties’

objection letters on that issue were not redacted from the PSR and

the addenda. 

Nondisclosure in this case is also supported by the interest

of the parties and the public in encouraging the free flow of

information to the sentencing judge. The need to encourage parties

to provide information to the court relevant to sentencing was

particularly important in the instant case, which involved a plea

agreement with a binding sentencing agreement under Rule

11(c)(1)(C). The court was required to determine whether the

proposed sentence would serve the ends of justice and whether it

was sufficient, but not greater than necessary, to satisfy the

statutory sentencing factors in 18 U.S.C. §3553(a). Thus, it was

critical during the PSR process to encourage Scotts to provide

information to the court relevant to sentencing. If a precedent of

request made to the Department of Justice or the EPA.

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disclosure of the PSR is established in this case, it might

discourage corporations from volunteering information in confidence

in the future, and could also affect the government’s ability to

negotiate plea agreements in similar cases. The fact that the

parties and this court made some limited reference to the evidence

in the case during the sentencing hearing or in sentencing

memoranda does not amount to a waiver by the parties in this case

of the confidentiality of the PSR and related documents. 

The court concludes that the class plaintiffs have not shown

a special need for disclosure of the PSR and related documents in

this case, nor have they shown that disclosure is necessary to meet

the ends of justice. The request of the class plaintiffs for an

order authorizing the probation office to disclose the PSR and

related documents in the Scotts case is denied.

E. Transcript of July 13, 2012, Conference

The class plaintiffs also seek disclosure of the transcript of

the July 13, 2012, pre-sentencing hearing which was held in camera. 

Scotts has filed a motion to seal the transcript.

“Every court has supervisory power over its own records and

files.” Nixon, 435 U.S. at 598; see also Gomez, 323 F.3d at 1307

(district courts have substantial supervisory powers over their

records and files). In United States v. Preate, 927 F.Supp. 163

(M.D. Pa. 1996), the court addressed the issue of whether the

transcript of an in camera pre-sentencing conference fell within

the scope of the PSR’s protection of confidentiality. The court

noted that the conference was for the purpose of discussing the PSR

and obtaining an additional proffer of information from the

government to supplement the information in the PSR. Id. at 166. 

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The court concluded that because the matters discussed at the

conference were fundamentally interconnected with the PSR, they

were covered by the report’s presumption of confidentiality, and

could be disclosed only upon a showing of a compelling,

particularized need for disclosure. Id.

The court has reviewed the transcript of the conference in the

instant case. The conference was attended by this court, counsel

and representatives of the parties, and probation officers. As in

Preate, the participants discussed the objections to the PSR. This

court also received additional information from the parties,

previously requested by this court through the probation officer,

which was relevant to sentencing and the court’s acceptance of the

Rule (c)(1)(C) agreement. This additional information supplemented

what was provided in the PSR.

The court finds that the matters discussed at the conference

were so interconnected with the PSR that they should be covered by

the PSR’s presumption of confidentiality. The considerations

discussed above in regard to the PSR and related documents also

apply to the pre-sentencing conference. Some of the discussions

addressing the offenses charged in Counts 2 through 11 of the

information did not concern the pesticide offense in Count 1 and

are not relevant to the class plaintiffs’ action. This conference

was held in camera to encourage open exchanges and frank

disclosures by the parties, including current proprietary business

information and investigatory details, which they were willing to

make in confidence. If the parties had known that the hearing

would later be made a public record, the court may not have

received the full extent of the information it received in aid of

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sentencing. Placing the transcript on the public record now may

have a chilling effect on the flow of information in cases of this

type in the future. In addition, the transcript includes this

court’s questions and conversations with counsel and the parties. 

Permitted public access to the transcript would disclose

information regarding this court’s exercise of its judicial

responsibilities in the decisional process of determining the

appropriate sentence and whether to accept the parties’ plea

agreement. See Guide to Judicial Policy, Volume 20, §850(a)(10). 

This factor also weighs against making the transcript a public

record.

The court finds that the class plaintiffs have not shown a

special need warranting disclosure of the transcript of the

conference. Scotts’ motion to seal the in camera July 13, 2012,

conference is granted. 

III. Conclusion

In accordance with the foregoing, the California class

plaintiffs’ request in 2:14-mc-39 for an order authorizing the

probation office to disclose to them the Scotts PSR and related

documents (sentencing recommendation, addenda, and objection

letters) is denied. Scotts’ motion in 2:14-mc-39 to seal (Doc. 16)

is granted. The government’s motion in Case No. 2:12-cr-24 in

support of Local Rule 32.1(k) is granted to the extent that it

advocates the nondisclosure of the PSR and related documents

identified above. Scotts’ motion to seal the July 13, 2012, in

camera conference (Doc. 27) in Case No. 2:12-cr-24 is granted.

Date: July 29, 2015 s/James L. Graham 

 James L. Graham

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 United States District Judge

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